Kansas Attorney General Opinions

September 23, 1980 ATTORNEY GENERAL OPINION NO. 80- 210 The Honorable Donald E. Gragg Commissioner, First District Sedgwick County Commission County Courthouse, Suite 320 Wichita, Kansas 67203 Re: Public Health--Water Pollution Control--Organization of County Wastewater Managemen…

The General Improvement and Assessment Law, K.S.A. 12-6a01 et seq., requires that the governing body of a city assess property in an improvement district by imposing substantially equal burdens or shares of the cost upon property similarly benefited.

The Pharmacy Act of the State of Kansas does not permit a physician to delegate the authority to dispense prescription-only drugs to his or her patients.

Moneys from an industrial development fund established under K.S.A. 1979 Supp. 12-1617h may be used to repair and maintain property bought by a municipality for the purpose of inducing industries to locate within or near the city and held for resale to those industries. Cited herein: K.S.A. 1979 Supp. 12-1617h, K.S.A. 12-1617i.

As a general rule, the county treasurer may only pay money out of the county treasury on orders of the board of county commissioners. However, where "special provision" for the payment of money out of the county treasury is made, the general rule is not applicable, and the county treasurer must make such payments out of the treasury as required by such special provision of the law. Subsection (c) of section 1 of 1980 House Bill No. 3283 [L. 1980, ch. 326, §1(c)] is such a "special provision."

The board of trustees of a county hospital may not use hospital -funds to purchase real property to provide a doctor or other hospital employee with a home; the board may not use hospital funds to make a personal loan to a doctor to purchase a house; and the board may not advance rent to an individual to induce him to vacate a house for the personal use of a physician, even though housing in the area is limited. Hospital funds derived from taxes, service charges, gifts, etc., are public funds and may not be expended for other than a public purpose. Cited herein: K.S.A. 1979 Supp. 19-1804. *

September 23, 1980 ATTORNEY GENERAL OPINION NO. 80 - 199 The Honorable Neal Whitaker State Representative, Ninety-First District 2568 Cardinal Drive Wichita, Kansas 67204 Re: Kansas Constitution--Legislative Article--Uniform Operation of Laws of A General Nature Synopsis: Prior t…

Political subdivisions of the state may not enact ordinances which regulate or call for inspection of "boilers" as defined by K.S.A. 1979 Supp. 44-914(a). However, the Boiler Safety Act, K.S.A. 1979 Supp. 44-913 et seq., does not preclude the enactment of ordinances by political subdivisions concerning objects which do not fall within said statutory definition.

The Kansas Wage Payment Law, K.S.A. 1979 Supp. 44-313 et seq., does not apply to state and local governments since the definition of "employer" in the Act does not expressly include such governmental entities. Cited herein: K.S.A. 1979 Supp. 44-313.

The words "receipt" and "deliver" as used in K.S.A. 12-708 mean that the governing body shall have formally communicated its statement of disapproval of a planning commission recommen- dation by letter or delivered message to the planning commission and that the planning commission shall have communicated its recommendations to the governing body in similar fashion.

September 22, 1980 ATTORNEY GENERAL OPINION NO. 80-203 Mr. Leonard McAnarney Scranton City Attorney Lyndon, Kansas 66541 Re: State Departments; Public Officers, Employees-- Kansas Tort Claims Act--Payment of Defense Costs of Employees of Governmental Entities in Civil Rights Case…

When a minor is placed by a district court or the Department of Social and Rehabilitation Services in a foster home, the foster parents may initiate medical care for the child following placement. Such care may include psychological or psychiatric evaluation and treatment which a physician determines is necessary for the welfare of the child. If records of such prior evaluation and treatment are labeled as confidential, they may be released by the foster parents only after authorization for such release is given by the placing agent.

The Garden City/Finney County Alcohol Fund Advisory Committee is subject to the Kansas Open Meetings Act, even though the Advisory Committee neither receives nor expends public funds, and is not supported in whole or in part by public funds, because the Advisory Committee is a committee or .subordinate group of the governing bodies of Garden City and Finney County, both of which are bodies which do meet the public funding test.

A Uniform Commercial Code financing statement, which lists as collateral the proceeds of an executory contract for the sale of real property, may be filed in the UCC files in the office of the Register of Deeds without payment of the mortgage registration fee. However, the proper place to file such financing statements, in order to perfect the security interest, is in the office of the Secretary of State.

A school board may enter into an agreement with an employee of the board, pursuant to a negotiated fringe benefit package made available to the board's employees, whereby such employee, having selected one of the alternative benefits which results in additional taxable income for such employee, thereby increasing FICA contributions attributable to such employee's wages, agrees to pay to the school board the school board's share of such increased contributions. However, such agreement may not operate so as to transfer to the employee the school board's liability for making all payments of FICA

September 12, 1980 ATTORNEY GENERAL OPINION NO. 80- 194 Mr. Richard E. Brown Legislative Post Auditor Mills Building Topeka, Kansas 66612 Re: Legislature--Legislative Post Audit--Responsibility for Auditing Federal Grants Synopsis: Attachment P to Circular A-102 of the U.S. Offic…

The City of Hays may not construct new buildings or structures on that portion of Kansas Frontier Historical Park leased to the City until a lease modification agreement is agreed upon and executed, pursuant to the provisions of L. 1980, ch. 303. Such a lease modification agreement, if executed, would allow the City to construct additions to existing buildings and other structures, provided that the prior written consent of the Kansas State Historical Society is obtained.

The Board of Healing Arts may not refuse to renew the license of a health care provider who does not maintain a policy of professional liability insurance as required by K.S.A. 1979 Supp. 40-3402(a). However, if the Board determines, in the exercise of sound discretion, that the failure to maintain professional liability insurance (in a specific factual context) constitutes "immoral, unprofessional or dishonorable conduct," a license revocation proceeding may be commenced, pursuant to the procedure prescribed by K.S.A. 1979 Supp. 65-2838, et seq.

Members of the Board of Barber Examiners, who are not salaried state officers or employees, are entitled to receive per diem compensation, in the amount allowed by K.S.A. 75-3223, for each day's attendance at meetings held for the purpose of conducting examinations of applicants for licensure by the Board.

Members of the Board of Cosmetology, who are not salaried state officers or employees, are entitled to receive per diem compensation, in the amount allowed by K.S.A. 75-3223, for each day's attendance at meetings held for the purpose of administering examinations to applicants for licensure by the Board or for the grading of examination papers. Cited herein: K.S.A. 1979 Supp. 74-2701, 74-2702, K.S.A. 74-2703 and 75-3223.

Real estate brokers and salespersons who have been continuously and actively licensed in this state for a period of five or more years immediately prior to July 1, 1980, are not required to submit evidence of "continuing education" under the provisions of Section 13(g) of the Real Estate Brokers' and Sales- persons' License Act [L. 1980, Ch. 164, §13(g)]. A real estate broker or salesperson need not have been continuously and actively engaged in the real estate business for the subject period of time in order to qualify for the exemption created by the aforesaid section.

The enactment of 1980 Senate Bill No. 657 would have rendered charitable organizations immune from negligence suits resulting from their distribution of free food which caused death or personal injury when consumed. The measure also would have granted similar immunity to the donors of such food, but in neither case would such immunity have extended to harm stemming from gross negligence, recklessness or intentional misconduct. Such grants of immunity are in violation of Section 18 of the Kansas Bill of Rights, which guarantees all persons who suffer injury a remedy by due course of law, and wo

September 4, 1980 ATTORNEY GENERAL OPINION NO. 80-186 The Honorable Don L. Dicks Enterprise Municipal Court P.O. Box 103 Enterprise, Kansas 67441 Re: Livestock and Domestic Animals--Animal Dealers-- Definition of "Dog Warden" Cities and Municipalities--Code of Procedure for Munic…

The exemption from replatting accorded to "lots zoned for industrial purposes," set forth in K.S.A. 12-705b, applies only to lots zoned for manu- facturing uses. Lots which are not zoned for such uses are not within the subject exemption. Cited herein: K.S.A. 12-705b.

August 27, 1980 ATTORNEY GENERAL OPINION NO. 80- 184 David L. Higgins, Attorney Weeks, Thomas, Lysaught & Mustain, Chartered P.O. Box 1028 Kansas City, Kansas 66117 Re: Cities and Municipalities--Port Authorities-- Exemption of Port Authority Property from Property Taxes Synopsis…

Public agencies, as defined in the Kansas Interlocal Cooperation Act, may enter into interlocal agreements with other public agencies and private agencies, as further defined in the Act, for the purpose of participat- ing in a merchantile association which provides insurance against tort liability for its members engaged in the commercial distribution of natural gas. In addition, such association is exempted from the Kansas Insurance Code pursuant to K.S.A. 40-202.

If licensed practical nurses who serve as health services supervisors in intermediate adult care homes are not engaged in the "administration, supervision or teaching of the [nursing] process," as defined by K.S.A. 1979 Supp. 65-1113(d)(1), but serve only in a subordinate role under the direction and supervision of consultant registered professional nurses, such persons are not engaged in the illegal practice of professional nursing.

A private, non-profit enterprise which provides recreational services and programs, such as a Young Men's Christian Asso- ciation (YMCA), may receive moneys distributed from the local alcoholic liquor fund only if the funds are expended for a public purpose. When such moneys are to be placed into the private association's building fund, without any further limits on their use, the benefit to the public is at most an indirect one, rendering the donation impermissible. Cited herein: K.S.A. 1979 Supp. 79-41a02, 79-41a04.

When changing the number of county commissioner districts pursuant to K.S.A. 1979 Supp. 19-204(b), the petition sub- mitted by the qualified electors of the county requiring the county commissioners to submit the question of a change in the number of districts to the electorate must be signed by five percent of the electors legally qualified at the time the petition is presented to the board of commissioners. The election to determine whether the number of districts will be changed is a general election and may not be a primary or presidential preference primary election.

August 6, 1980 ATTORNEY GENERAL OPINION NO. 80- 180 Philip C. Lacey McPherson City Attorney Municipal Center 400 East Kansas Avenue McPherson, Kansas 67460 Re: Intoxicating Liquors and Beverages--Prohibited Acts and Penalties--Consumption of Alcoholic Liquor in Public Places Syno…

A county may levy taxes pursuant to K.S.A. 1979 Supp. 68-559a, 68-1103 and 68-1135 for purposes of reconstruction of and repairs to existing bridges in the county, and for construc- tion of new bridges, at the same time. The moneys derived from said tax levies may be used in combination for such purposes, except that expenditures of moneys derived under the provisions of K.S.A. 1979 Supp. 68-1103 are subject to two limitations imposed under that section.

Bonds issued by a county pursuant to K.S.A. 1979 Supp. 68-1103(b) for financing the cost of bridge repair in the county are general obligation bonds, payable from unlimited ad valorem taxes, and are not bonds payable solely from the proceeds of the two (2) mill levy authorized in K.S.A. 1979 Supp. 68-1103(c).

Even though moneys paid pursuant to city ordinance to the city attorney and municipal judge of DeSoto, Kansas, may commonly be referred to as "fees," they are nonetheless "wages," as that term is defined in K.S.A. 1979 Supp. 40-2302(a), and are subject to withholding for social security purposes.

A public improvement authorized by K.S.A. 12-6a01 et seq. which is partially within the corporate limits of the city and partially within three miles of the city limits shall be commenced only upon petition found sufficient by the provisions of K.S.A. 12-6a04, and for the purpose of determining the sufficiency of the signatures to such petition, that area which is outside the corporate limits of the city shall be considered to constitute the proposed district in accordance with K.S.A. 1979 Supp. 12-693.

August 4, 1980 ATTORNEY GENERAL OPINION NO. 80- 175 The Honorable David F. Louis State Representative, Eighteenth District 10716 West 52nd Circle Shawnee, Kansas 66203 Re: Taxation--Mortgage Registration Fee--Applicability Synopsis: Quitclaim deeds, which contain a reference to a…

In the absence of statutory provision to the contrary, interest earned on tax revenues deposited by the county treasurer in an interest-bearing account prior to the time at which the tax revenues are available for distribution must be apportioned among the various taxing subdivisions in the ratio of their respective shares of the total tax receipts so deposited. From and after the date such tax receipts are available for distribution, the provisions of K.S.A. 1979 Supp. 12-1678a govern the disposition of accrued interest.

A telephone conference call among members of a public body may constitute a meeting of such body, where the number of members engaged in such call is sufficient by statute to transact the business of the body, and so long as all members thereof are notified of the conference call and given the opportunity to participate. Meetings held pursu- ant to telephone conference calls are subject to the Open Meetings Act where such calls involve a majority of a quorum of the public body's membership, even though the number of members involved is not enough to transact the business of the public body.

Absent any express statute requiring the city to do so, a city may lease municipally-owned property for the extraction of oil and gas without advertising for and receiving bids therefor. There is no such statute applicable to cities of the third class.

For the purposes of a groundwater management district, a "landowner", as defined by K.S.A. 82a-1021(g), is any person who meets either of the following requirements: (1) is the record owner of any real estate within the boundaries of the district, or (2) has an interest as a contract purchaser of forty or more contiguous acres of land in the district which is not within the corporate limits of any municipality. If a person meets the require- ments for a landowner, he is subject to annual assessments levied by the district under K.S.A. 82a-1030(a), even if he is not an eligible voter as that te

K.S.A. 1979 Supp. 80-2125 authorizes the board of directors of a hospital district organized pursuant to K.S.A. 80-2113 et seq. to levy a tax for the purpose of maintaining and operating the district hospital and for the payment of the general expenses of the district. The board has no authority to transfer moneys from such operation and maintenance fund to the district building fund, authorized by K.S.A. 1979 Supp. 80-2127, to be used for a building construction project or other such capital improvements.

The qualifications for a municipal judge in a city of the third class may be found at K.S.A. 12-4105 and 15-209, and deal solely with such matters as residency, citizenship and age. No express disqualification of those individuals with felony convictions exists, thus leaving the effect of such a conviction up to the consideration of the city council, pursuant to K.S.A. 15-204. However, such a conviction may also violate Canon 2 of the Code of Judicial Conduct, with such a determination to be made by the State Commission on Judicial Qualifications.

The willful neglect of duty by a member of a governing body in failing to perform those duties imposed by the Kansas Open Meetings Act may constitute grounds for ouster pursuant to K.S.A. 60-1205.

The board of county commissioners has no authority to expend moneys derived from a special maintenance tax levied pursuant to K.S.A. 1979 Supp. 19-2709 except for expenses incurred for maintenance of a sewage system. An expenditure of such moneys to reimburse another fund used to pay for expenses incurred for repairs to said sewage system is impermissible. Cited herein: K.S.A. 1979 Supp. 19-2704, 19-2709, K.S.A. 19-2753 et seq., K.S.A. 1979 Supp. 19-2765, K.S.A. 79-2925 (as amended by L. 1980, ch. 89, §4), 79-2927, 79-2934, 31 U.S.C.A. §S1221 et seq.

If the city council deems it appropriate to remove the city's police department from the mayor's control and supervision, it may adopt a charter ordinance exempting the city from pertinent provisions of article 3 of chapter 14 of the Kansas Statutes Annotated and pro- viding additional and substitute provisions therefor. The separation of powers doctrine is not applicable to municipal governments and so, therefore, does not operate to preclude the adoption of such charter ordinance.

The provisions of K.S.A. 12-708, relating to protests against zoning amendments, are mandatory, and the City of Merriam must allow a full fourteen-day period for the filing of protests before taking any action upon a recommendation of the planning commission.

The board of trustees of a hospital established pursuant to K.S.A. 1979 Supp. 19-1801 et seq. may not own or hold title to donated real estate, and any conveyance of an interest in hospital property (whether donated or not) must be executed by the board of county commissioners.

Under the provisions of K.S.A. 12-520, land may be annexed to a city without necessarily having to be platted before- hand. However, such a plat may be required by local sub- division regulations adopted pursuant to K.S.A. 12-705 before lots may be developed therein. In the absence of such regulations, an area may simply be known as the Addition" and the ordinance annexing such, together with any description of tracts therein, may be treated by the Register of Deeds as a plat for purposes of recording and indexing.